Greater Buffalo Press, Inc. v. Federal Reserve Bank

129 F.R.D. 462, 1990 U.S. Dist. LEXIS 1548, 1990 WL 12324
CourtDistrict Court, W.D. New York
DecidedJanuary 26, 1990
DocketNo. CIV-78-27C
StatusPublished
Cited by4 cases

This text of 129 F.R.D. 462 (Greater Buffalo Press, Inc. v. Federal Reserve Bank) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greater Buffalo Press, Inc. v. Federal Reserve Bank, 129 F.R.D. 462, 1990 U.S. Dist. LEXIS 1548, 1990 WL 12324 (W.D.N.Y. 1990).

Opinion

CURTIN, District Judge.

On March 17, 1988, this court granted defendants’ motion for summary judgment and dismissed plaintiffs’ fourth complaint (Items 132, 133). That decision was affirmed on January 18, 1989, Greater Buffalo Press, Inc. v. Federal Reserve Bank of New York, 866 F.2d 38 (2d Cir.), cert. denied, — U.S.-, 109 S.Ct. 3159, 104 L.Ed.2d 1022 (1989). There still remains for decision a determination of the monetary amount of a Rule 37 sanction against plaintiff because of an order entered on December 31, 1980 (Item 51). The court held that sanctions should be awarded but did not determine the amount at that time for reasons that will be set forth in this decision. However, before that motion may be considered, the court must first rule on plaintiff’s motion for recusal.

Plaintiff has filed three motions for recusal. The first, filed on June 30, 1988, was appended to plaintiff’s response to the defendants’ motion for sanctions and its cross-motion for sanctions against the defendants (Item 140 at ¶ 3). The second was filed on July 26, 1989 (Item 150), but was denied without prejudice to renew on proper papers (Item 152). A third motion to recuse was filed on September 29, 1989 (Item 155). In addition to the recusal motion, plaintiff also seeks disqualification of defendants’ counsel. Defendants have replied by memoranda and affidavit, and have moved for Rule 11 sanctions (Items 157-60, 162). The court will take up the recusal motion first.

Motion for Recusal

Contemporaneously with filing a decision in this case, I have filed a decision in the case of Person v. General Motors Corporation, 730 F.Supp. 516 (W.D.N.Y.1990). In that case, plaintiff’s counsel, Arnold Weiss, Esq., also moved for my recusal and made many of the same arguments that he set forth in this case. The detailed analysis of the law made in that decision applies to his application for a recusal in this case as well.

The court has carefully reviewed the authorities bearing on the question of recusal, especially the recent teaching of the Second Circuit in cases such as In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1314 (2d Cir.1988), reh’g denied, 869 F.2d 116 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989); Apple v. Jewish Hospital and Medical Center, 829 F.2d 326 (2d Cir.1987); and In re International Business Machines Corp., 618 F.2d 923 (2d Cir.1980). The court must first determine whether the procedural requirements under the statutes have been met. In this case, it is clear that they have not been met. Furthermore, it is clear that adverse rulings by the court in this case or in other cases do not create the appearance of bias. In order to mandate recusal, bias must be personal and cannot rest upon trial rulings or conduct. The recusal statutes, see 28 U.S.C. §§ 144, 455(a), and 455(b)(1), were never intended to enable a litigant to oust a judge for adverse rulings. “A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is.” In re Drexel Burnham Lambert, Inc., 861 F.2d at 1312.

[464]*464The affidavit filed by plaintiffs counsel in support of the motion is clearly insufficient. Counsel alleges that I am biased against him but does not allege that I am biased against his client. The affidavit is rife with opinions, conclusions, and surmise, but is wanting in factual detail. Some of the events referred to occurred some time ago, and others have no bearing whatsoever on the present case.

Defendants have set forth a partial list of deficiencies:

(a) A party must file an affidavit alleging bias; an attorney’s affidavit is not competent;
(b) The Weiss Affidavit alleges no bias or prejudice directed against a party or in favor of another party;
(c) A party is limited to “one ... affidavit in any case,” under 28 U.S.C. § 144, yet Mr. Weiss has sought recusal three times in this matter;
(d) The Weiss Affidavit lacks a certification that it is made in good faith;
(e) The Weiss Affidavit is untimely;
(f) The Weiss Affidavit contains matter immaterial to the Motion to Recuse;
(g) The Weiss Affidavit contains scandalous, impertinent and redundant matter; and
(h) The Weiss Affidavit contains no matter relevant to the Motion to Recuse.

(Item 157 at 2) (emphasis supplied). Furthermore, in their memorandum (Item 158), defendants have discussed at length the many inadequacies of Mr. Weiss’s application and have supported each point with substantial authority. Defendants have characterized it as “an encyclopedia of bald and unsupported assertions.” (Item 158 at 16.) Many of his assertions are frivolous. Simply to list them will reveal their inadequacies:

Mr. Raichle’s characterization of Mr.
Weiss’ work product as “excellent job”
<¶4).
The accusation that the Court has a
“long-standing bias” toward Mr. Weiss
(¶ 6).
The accusation that the award of attorneys’ fees was “unjust” (If 25).
The allegation that the bias of the Court “intensified” (1127).
The detection of supposed bias from “grimaces and hostile responses” (If 28).
The speculative and hypothetical “embarrassment” that the Court will endure as a result of the foregoing accusations and allegations (1129).

Item 158 at 16.

Some of the allegations are threatening in nature, and clearly have no place in an application for recusal. Mr. Weiss asserts that I have had a longstanding bias against him “because of deponent’s actions in bringing to light certain conduct of Judge Curtin which constitutes a marked departure on his papt [sic] from accepted standards of Judicial Conduct.” (Item 155 at U 6). There is no mention of either what the conduct was or what he supposedly brought to light. Apparently, it was his intention to seek censure of this court for rulings made in the case of Market, et al. v. Scovill Manufacturing Company, et al., 471 F.Supp. 1244 (W.D.N.Y.1979) (Item 155 at ¶¶ 7-8), before the case was transferred to Judge Richard Arcara. He charges that I made false statements in an opinion in that case (¶¶ 18-19), and that I altered the record in another case (¶¶ 10-13).

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Bluebook (online)
129 F.R.D. 462, 1990 U.S. Dist. LEXIS 1548, 1990 WL 12324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greater-buffalo-press-inc-v-federal-reserve-bank-nywd-1990.